A few months ago in this blog we discussed Vermont’s law requiring foods containing genetically modified organisms (GMOs) to be labeled as such (Vermont Becomes the First State to Enact a GMO Label Law). In that previous article, it was noted that Vermont was bracing for anticipated legal challenges to its law. It was predicted that one challenge would be that the law violates commercial free speech rights under the First Amendment. As predicted, several associations representing the food industry filed a lawsuit against Vermont alleging, among other things, that the labeling violates their First Amendment right to “refrain from speaking.” Pursuant to this “refrain from speaking” argument, the associations allege that the law “compels manufacturers to use their labels to convey an opinion with which they disagree, namely, that consumers should assign significance to the fact that a product contains an ingredient derived from a genetically engineered plant.”

On August 8, 2014, Vermont filed its Motion to Dismiss the Complaint. With respect to the First Amendment argument, Vermont asserted that the law was reasonably related to the State’s interests in “public health and food safety, environmental protection, prevention of consumer confusion, and accommodation of religious practices.” Vermont added that the law was enacted to address specific concerns about GMO foods based on scientific material presented during the legislative process.

Although the Associations have not yet filed their response to Vermont’s Motion to Dismiss, a recent decision from the U.S. Court of Appeals for the District of Columbia Circuit in a case involving meat-labeling rules may harm the food industry associations’ First Amendment argument. That case involved USDA rules requiring meat producers to disclose where their livestock was born, raised, and slaughtered. The meat producer industry groups that filed the lawsuit argued that the rules violated the First Amendment by compelling corporate speech. Additionally, the industry groups contended that disclosures should only be compelled to prevent deception, which was not at issue. The court rejected the groups’ argument, finding, based on previous U.S. Supreme Court authority, that government interests, in addition to correcting deception, can be invoked to compel disclosures of “purely factual and uncontroversial information.”

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Whether the District Court in Vermont will follow the lead of the D.C. Circuit remains to be seen. However, it is expected the opponents of Vermont’s GMO law will highlight the dissent in the D.C. Circuit case, where Judge Janice Rogers Brown wrote that “[t]he fundamental First Amendment right not to be coerced or compelled to say what one would not say voluntarily is now demoted to a mere tautology.”